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Protecting rights and facilitating stable relationships among federal agencies, labor organizations, and employees while advancing an effective and efficient government through the administration of the Federal Service Labor-Management Relations Statute.

30 FLRA NO. 122
30 FLRA 1105 (1988)
29 JAN 1988
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO, LOCAL 1625
Union
and
DEPARTMENT OF THE NAVY
NAVAL AIR STATION
OCEANA, VIRGINIA
Agency
Case No. O-NG-1323
DECISION AND ORDER ON NEGOTIABILITY ISSUES
I. Statement of the Case
This case is before the Authority because of a negotiability
appeal filed under section 7105(a)(2)(E) of the Federal Service
Labor - Management Relations Statute (the Statute). It concerns
the negotiability of seven provisions of a negotiated agreement
disapproved by the head of the Agency under section 7114(c) of
the Statute. 1
For the reasons discussed below, we find that the Agency
must rescind its disapproval of Provisions 4 and 5. The Union's
petition for review concerning Provisions 1, 2, 3, 6, and 7 is
dismissed.
Provision 1
Article IV, Section 909
When employees are scheduled to report for overtime work at
the regular scheduled starting time on Saturday or Sunday for an
eight-hour shift, and the Activity determines the employee's
services cannot be utilized for the entire eight hour shift, the
affected employee, when notified during the first four hours of
the shift, may be relieved from duty any time after four hours
work is completed. If workload permits and Management agrees,
employees may be relieved at any time upon their request. The
supervisor will not coerce an employee to request that he be
relieved from duty to avoid payment of minimum overtime specified
above.
(Only the underscored portion is in dispute.)
A. Positions of the Parties
The Agency contends that Provision 1 interferes with its
right to assign work under section 7106(a)(2)(B) by preventing it
from terminating a scheduled 8-hour overtime shift until at least
4 hours of the shift has been worked. It cites in support
American Federation of Government Employees, AFL - CIO, Mint
Council 157 and Department of the Treasury, Bureau of the Mint,
19 FLRA 640 (1985).
The Agency also contends that the provision is not within
the duty to bargain as an appropriate arrangement under section
7106(b)(3). It argues that (1) the provision is not an
arrangement for adversely affected employees because no adverse
effect flows from customary and routine exercises of management's
rights such as requiring the performance of overtime work; and
(2) even assuming an adverse effect, the provision excessively
interferes with management's right to assign work. Finally, the
Agency argues that section 7106(b)(3) should apply only "when
management uses its management rights in such a way as to change
conditions of employment in a substantial way," Agency
Supplemental Statement of Position at 5 (emphasis in original),
and that the Authority should reconsider its adoption of the
"excessive interference test." Agency Supplemental Statement of
Position at 9-12
The union contends that the Agency's reliance on Bureau of
the Mint is misplaced. It argues that the issue in that case did
not involve employees being called back to work but concerned
employees being scheduled to work overtime with a guarantee of 4
hours. The Union also contends that if Provision 1 violates
management's rights, it nevertheless is an appropriate
arrangement under section 7106(b) (3) because, on balance, it
does not excessively interfere with those rights.
B. Analysis and Conclusion
1. The Provision Interferes With The Right To Assign Work
In Bureau of the Mint, Provision 1 guaranteed "a minimum of
four hours work at the applicable overtime rate" to an employee
scheduled to work overtime outside the basic workweek. The
Authority found that the provision prevented the agency from
assigning an employee less than 4 hours of overtime work. The
provision prevented management from acting at all and, therefore,
was not a negotiable procedure within the meaning of section
7106(b)(2) and violated management's right to assign work.
This provision, like Provision 1 in Bureau of the Mint,
would guarantee a minimum of 4 hours of work and pay to an
employee who is scheduled to perform overtime work outside the
basic workweek. The plain wording of the provision provides that
an employee "may be relieved from duty any time after four hours
work is completed." (emphasis added). It would prevent the Agency
from assigning less than 4 hours of overtime work to an employee.
The provision would apply whether or not there was a need for 4
hours' work. The Union states that it does not intend "that
employees be required to work four hours before terminating the
overtime shift." Union Response at 6. This assertion is
inconsistent with the wording of the provision and, therefore,
the Union's intention is not controlling. See American Federation
of Government Employees, National GSA Council (No. 236), Local
1497 and General Services Administration, Region 3, 24 FLRA 928,
931 (1986).
Accordingly, since this provision like Provision 1 in Bureau
of the Mint deprives management of the discretion to assign less
than 4 hours of overtime work, we find that it directly
interferes with management's right to assign work.
2. The Provision Is Not An Appropriate Arrangement
In National Association of Government Employees, Local
R14-87 and Kansas Army National Guard, 21 FLRA 24 (1986), the
Authority articulated the test, which we here reaffirm, for
determining whether a proposal is negotiable as an appropriate
arrangement under section 7106(b)(3). Under that test, whether
the exercise of the management rights involved is "routine" or
results in a substantial change in conditions of employment is
not determinative of the question of negotiability, as the Agency
suggests. However, this factor--whether the exercise of the
management rights involved is "routine" or results in a
substantial change in conditions of employment--may be a
consideration in balancing the interests of employees against
those of management. American Federation of Government Employees,
AFL - CIO, Local 2317 and U.S. Marine Corps, Marine Corps
Logistics Base, Nonappropriated Fund Instrumentality, Albany,
Georgia, 29 FLRA 1587, 1590-91 (1987) (Provision 1).
The Union asserts that the provision is intended as an
arrangement for employees who are adversely affected by the
employer's "uneven release procedure" and the "intrusion on the
employee's own personal time" of weekend overtime work. Union
Response at 7. The effect of the provision is to mitigate
intrusion into employees' personal time by providing 4 hours of
compensation. While it is not clear that employees are "adversely
affected" in the circumstances covered by the provision, we
assume such an effect for purposes of this decision. Balancing
the respective interests of the Agency and the employees, we find
that the proposed arrangement excessively interferes with the
Agency's right to assign work and is, therefore, outside the duty
to bargain, as explained below.
The provision would proscribe management's terminating
certain weekend overtime assignments until "four hours work is
completed" (except that "employees may be relieved at any time
upon their request"). It prevents management from unilaterally
ending an overtime assignment before 4 hours of work is completed
for any reason including reasons of efficiency and economy or
emergency(ies). On the other hand, the provision would guarantee
a minimum of 4 hours' work and overtime compensation for
employees whose personal weekend time had been interrupted by the
work assignment. However, any adverse effect resulting from the
intrusion into employees' personal time is mitigated since
employees are paid at an overtime rate and are guaranteed a
minimum of 2 hours of overtime compensation under law
even if less than 2 hours' work is performed. 5 U.S.C.
5542(b)(1). Further the Union acknowledges that the assignments
covered by the provision arise only infrequently. Union Response
at 9.
On balance, we find that the negative impact on the Agency's
right to assign work is disproportionate to the additional
benefit which the provision would afford employees. Accordingly,
the provision excessively interferes with the Agency's right to
assign work. Therefore, we conclude that Provision 1 is outside
the duty to bargain because it violates management's right to
assign work under section 7106(a)(2)(B) and does not constitute
an appropriate arrangement under section 7106(b)(3) of the
Statute.
III. Provision 2
Article XII, Section 2108
It is agreed and recognized that arbitration as provided
herein is subject to the provisions of Public Law 95-454. If the
union takes exception to an Arbitrator's award, it will notify
the Employer within thirty (30) calendar days of intent to
appeal to the Federal Labor Relations Authority. If the Employer
takes exception to an Arbitrator's award, it will notify the
Union within thirty (30) calendar days of intent to request
approval from the Assistant Secretary of the Navy (or his
designee) to appeal to the Federal Labor Relations Authority. In
absence of written notification within the above time limit, the
award will be binding and the decision of the arbitrator will be
implemented immediately.
(Only the underscored portion is in dispute.)
A. Positions of the Parties
The Agency contends the provision would force it to perform
an illegal act. It asserts that section 7122(b) was not intended
to require implementation of awards which contravene Federal law
even where no timely exceptions to an arbitration award have been
filed. The Agency also contends that the provision is
inconsistent with section 7122 of the Statute because it would
make an award final and binding even though the Agency filed
timely exceptions with the Authority.
The Union contends that an award becomes final and binding
if a party fails to file exceptions during the 30-day period
after the award is served on the party.
B. Analysis and Conclusion
Provision 2 is outside the duty to bargain. It is
inconsistent with section 7122(b) of the Statute.
Provision 2 would require implementation of an arbitrator's
award 30 days from the date of the award unless written
notification of intent to file exceptions was given to the other
party during the 30-day period. section 7122(b) provides that
"(i)f no exception to an arbitrator's award is filed . . . during
the 30-day period beginning on the date the award is served on
the party, the award shall be final and binding." The legislative
history of the 1983 amendment of section 7122(b) reveals that
Congress intended to ensure that a full 30-day period be
available to parties for filing exceptions to an arbitration
award. See 129 Cong. Rec. H10019 (daily ed. Nov. 16, 1983)
(remarks of Rep. Schroeder). See also Association of civilian
Technicians and Pennsylvania National Guard, 27 FLRA 96, 97-98
(1987). Furthermore, section 2429.23(d) of our rules and
regulations provides that the 30-day period in section 7122(b)
"may not be extended or waived."
Provision 2 could require the Agency to implement an award
to which it had filed timely exceptions with the Authority. Under
the provision, an award would become binding and would have to be
implemented if a party failed to provide, within 30 days from
the date of the award, a written notification to the other party
of its intent to file exceptions to the award. Under the Statute,
an award becomes "final and binding" if no exception to an
arbitrator's award is filed during the 30-day period beginning on
the date the award is served on the party. Thus, under
circumstances where a party was served with an award several days
after the date of the award and made its decision to file
exceptions more than 30 days from the date of the award, the
provision would make the award final and binding even if the
party subsequently filed timely exceptions. Consequently, the
provision would have the effect of not allowing the full 30-day
period required by the Statute for filing exceptions.
Accordingly, the provision is inconsistent with section 7122(b)
and, therefore, outside the duty to bargain. See U.S. Soldiers'
and Airmen's Home, Washington, D.C and American Federation of
Government Employees, Local 3090, AFL - CIO, 15 FLRA 139, 141-42
(1984), vacated on other grounds and remanded sub nom.
American Federation of Government Employees, AFL - CIO, Local
3090 v. FLRA, 77 F.2d 751 (1985). In view of this decision, it
is unnecessary to reach the Agency's other contention concerning
the nonnegotiability of the provision.
IV. Provision 3
Article XII, Section 2202
The Activity will utilize to the fullest extent the present
skills of employees including the redesigning of jobs where
feasible and will provide the maximum feasible opportunity to
employees to enhance their skills through on-the-job training,
work-study programs, and other training measures so that they may
perform at their highest potential and advance in accordance with
their abilities.
A. Positions of the Parties
The Agency contends that Provision 3 is inconsistent with
the right to assign work. It also contends that the provision is
not an appropriate arrangement for employees adversely affected
by the exercise of management rights because the Union has failed
to identify any adverse effect.
The Union contends that the provision does not interfere
with the right to assign work because it does not require the
Agency to provide certain kinds of work opportunities or specify
the type, time, or place of training. Rather, the Union claims
that the provision provides that job redesign is only one of
alternative procedures which may be followed where it is feasible
to do so. It argues that the provision is not materially
different from the portion of Proposal X found to be negotiable
in American Federation of Government Employees AFL - CIO, and Air
Force Logistics Command, Wright - Patterson Air Force Base, Ohio,
2 FLRA 6 4, 620-22 (1980), enforced sub nom. Department of
Defense v. FLRA, 659 F.2d 140 (D.C. Cir. 1981), cert. denied sub
nom. AFGE v. FLRA, 455 U.S. 945 (1982). The Union also contends
that the provision is an appropriate arrangement.
B. Analysis and Conclusion
The provision is outside the duty to bargain. it interferes
with the right to assign work and is not an arrangement within
the meaning of section 7106(b)(3).
1. The Provision conflicts With The Agency's Right To Assign
Work Under Section 7106(a)(2)(B)
This provision concerns both how employees' existing skills
will be utilized as well as the enhancement of those skills. It
would require the Agency to use existing skills "to the fullest
extent," to redesign jobs where feasible, and to make
opportunities available to employees to improve their skills
through on-the-job and other training conducted during duty
hours.
Insofar as this provision is concerned with the use of
existing skills and the improvement of those skills through
job-related training occurring during duty hours, it is virtually
identical to the proposal which the Authority held nonnegotiable
in American Federation of Government Employees, AFL - CIO, Local
1625 and U.S. Navy fleet Combat Training Center, Atlantic, Dam
Neck, Virginia Beach, Virginia, 28 FLRA (1987). In that decision
we found that the proposal directly interfered with management's
right to assign work by obligating management to provide certain
types of job-related training during duty hours. For the reasons
stated in U.S. Navy Fleet Combat Training Center, we reach the
same conclusion here.
Insofar as this provision additionally requires management
to redesign jobs "where feasible" as one way of using employees'
skills "to the fullest extent," we also find that it directly
interferes with management's right to assign work. Job redesign
requires, among other things, a determination of the work which
will be assigned to the position or employee involved. A proposal
to redesign a job in a particular manner conflicts with
management's right to assign work by prescribing the work to be
assigned. For example, in American Federation of Government
Employees, AFL - CIO, Local 32 and Office of Personnel
Management, 17 FLRA 790 (1985) (Proposal 4), the Authority held
that a proposal which required management to redesign jobs to
create promotional opportunities interfered with the rights to
determine organization and to assign work.
We find that Provision 3 requires management to redesign
jobs to use employees' skills "to the fullest extent." We reject
the Union's claim that the qualifying standard, "where feasible,"
removes the limitation on the Agency's right to exercise its
discretion in making work assignments. See Union Response at 17.
The standard "where feasible" is materially identical to the one
we found to be outside the duty to bargain in American
Federation of Government Employees, AFL - CIO, Local 2317 and
U.S. Marine Corps, Marine Corps Logistics Base, Nonappropriated
Fund Instrumentality, Albany, Beorgia, 29 FLRA 1587, 1606-09
(1987) (Provision 8: "The Employer agrees to provide
opportunities for employees to improve their skills through . . .
training programs including redesigning jobs where and if
feasible.").
We find that the qualifying phrase here would enable an
arbitrator to substitute his or her judgment for management's as
to, for example, whether management had in fact redesigned jobs
where feasible to ensure the use of skills to the fullest extent.
See also Overseas Education Association, Inc. and Department of
Defense, Dependents Schools, 29 FLRA 628, 640 (1987), petition
for Review filed sub nom. Overseas Education Association, Inc. v.
FLRA, No. 87-1575 (D.C. Cir. Oct. 14, 1987) (Proposals 5b-d).
We recognize that in Wright - Patterson Air Force Base, 2
FLRA at 621, the Authority concluded that subsection A of
Proposal X, which stated that "(p)rocedures for skills
utilization will include the redesigning of jobs where feasible,"
did not infringe on the right of the agency to assign work. In
that decision, the Authority viewed the qualifying
language--where feasible--as not requiring an agency to assign or
refrain from assigning any particular work but merely as
establishing a general operating principle which an agency may or
may not choose to follow.
As indicated above, however, more recent Authority decisions
since Wright - Patterson Air Force Base have consistently held
that qualifying language such as "where feasible" constitutes a
substantive interference with management's exercise of its rights
under the Statute. Consequently, we will no longer follow Wright
- Patterson Air Force Base, 2 FLRA at 620-21, relied on by the
Union, to the extent that it is inconsistent with this
decision.
Since this provision requires the Agency to (1) determine it
will use skills in a particular manner by redesigning jobs and
(2) assign training during duty hours, it directly interferes
with the Agency's right to assign work.
2. The Union Has Not Established That The Provision Is An
"Arrangement" Under Section 7106(b)(3)
The threshold question in determining whether a provision
constitutes an "appropriate arrangement" for employees
adversely affected by the exercise of a management right is
whether the provision is an "arrangement" for adversely affected
employees. National Association of Government Employees, Local
R14-87 and Kansas Army National Guard, 21 FLRA 24 (1986). In
U.S. Navy Fleet Combat Training Center, 28 FLRA at 1137-38, we
found that a similar proposal was not an arrangement within the
meaning of section 7106(b)(3). The proposal required an agency to
provide training so that employees could enhance their skills to
their fullest potential and advance in accordance with their
abilities. We found that the proposal provided a benefit to
employees but that it did not mitigate adverse consequences
resulting from a management action. It simply enabled employees
to improve their existing skills and abilities. Thus, because we
considered the proposal not to be an "arrangement" within the
meaning of section 7106(b)(3), it was not necessary for us to
determine if the proposal was an "appropriate" arrangement.
The provision in this case requires the Agency to provide
training so that employees may enhance their skills, perform at
their fullest potential, and advance in accordance with their
abilities. In our view, this provision, like the proposal in U.S.
Navy Fleet Combat Training Center, does not address an adverse
effect on employees which is the result of the exercise of a
management right. Although the provision provides a benefit to
employees, it is not a benefit which mitigates against some
adverse consequence resulting from a management action. It simply
would enable employees to improve their existing skills and
abilities. Thus, we need not determine whether the provision is
an "appropriate" arrangement since it does not qualify for
consideration under section 7106(b)(3).
V. Provision 4
Article XXIV, Section 2404
Whenever technological changes cause abolishment of some
jobs and establishment of others, the Activity agrees to utilize
the abilities and skills of the displaced employees through
training programs at the Activity designed to qualify these
employees for the other jobs to the extent possible consistent
with the abilities of the employees The Activity further agrees
to bear the expense of this training as allowed by
applicable regulations.
(Only the underscored portion is in dispute.)
A. Positions of the Parties
The Agency contends the provision would require it to
provide on-the-job training and is to the same effect as Proposal
1 found nonnegotiable in International Brotherhood of Electrical
Workers, AFL - CIO, Local 121 and U.S. Government Printing
Office, Washington, D.C., 8 FLRA 188 (1982). The Agency further
claims the provision is distinguishable from Proposal 3 found to
be an appropriate arrangement in American Federation of
Government Employees, Local 3231 and Social Security
Administration, 22 FLRA 868 (1986). It contends that the
provision is not an appropriate arrangement because: (1) the
impact on employees of losing their jobs through the introduction
of new technology is reduced to a "relatively low level" because
the Agency, by regulation, minimizes its impact by providing
training and other techniques to such employees; and (2) it would
"totally deprive" the Agency of any discretion not to train
displaced employees even where other measures such as
reassignment would be more efficient and effective.
The Union contends that the provision is an appropriate
arrangement and is similar to Proposal 3 in AFGE Local 3231. It
argues that based on the plain wording of the provision--"to the
extent possible consistent with the abilities of the
employees"--the Agency: (1) retains discretion as to when, where
and how much training would be given to employees displaced by
technological changes; and (2) is not required to provide
training for such employees if it was unlikely they would be
selected for the new jobs.
B. Analysis and Conclusion
Provision 4 is within the duty to bargain. It conflicts with
management's right to assign work under section 7106(a)(2)(B),
but it constitutes an appropriate arrangement under section
7106(b)(3) because, as explained below, it does not excessively
interfere with management's right.
The provision would require the Agency to provide training
for employees displaced due to technological change to
qualify them for other jobs. Proposals requiring management to
provide training during duty hours to enable employees to perform
a new speciality or perform in a replacement position of
equivalent significance and/or grade conflict with management's
right to assign work. AFGE Local 3231, 22 FLRA at 872-73. Based
on the reasons and cases cited in AFGE Local 3231, we find that
Provision 4 would interfere with management's right to assign
work and is outside the duty to bargain unless it constitutes an
appropriate arrangement under section 7106(b)(3).
The provision is intended to provide protection for
employees whose jobs are abolished because of the Agency's
introduction of new technology. Union Response at 22. We,
therefore, find that it constitutes an arrangement for employees
adversely affected by the exercise of management's rights.
The provision does not excessively interfere with
management's right to assign work. Provision 4 is to the same
effect as Proposal 3 in AFGE Local 3231 which the Authority found
constituted an appropriate arrangement. In that case, the
Authority found that the proposal required the agency to provide
adequate training, but that the type of training and when it
would occur was left to the agency's discretion. Similarly,
Provision 4 requires the Agency to provide training programs, to
the extent possible, for employees whose jobs are abolished due
to technological changes so these employees can qualify for other
jobs. It does not mandate that the training occur during duty
hours or deprive the Agency of discretion concerning the
methodology, scheduling, duration, type, content, and other
characteristics of the training itself. We, therefore, find that,
on balance, the negative impact on management's right to assign
work does not outweigh the disruption to an employee caused by
being displaced due to technological change and the benefit
conferred by this provision of an opportunity to be trained to
qualify for other jobs.
Based on the foregoing, we conclude that the provision does
not excessively interfere with management's rights and is an
appropriate arrangement within the meaning of section
7106(b)(3).
VI. Provision 5
Article XXXVI, Section 2602
In the event of a reduction-in-force, existing vacancies
will be utilized to the maximum extent possible to
place employees in continuing positions, who otherwise would be
separated for the service. All reduction-in-force will be carried
out in strict compliance with applicable laws and regulations.
(Only the underscored portion is in dispute.)
A. Positions of the Parties
The Agency contends the provision is, in all material
respects, the same as the proposal in National Federation of
Federal Employees, Local 29 and U.S. Army Corps of Engineers,
Kansas City District, Kansas City, Missouri, 21 FLRA 630 (1986)
which the Authority found to be an appropriate arrangement under
the Statute but inconsistent with a Government-wide
regulation--Federal Personnel Manual (FPM) chapter 335,
subchapter 1-4, requirement 4.
The Union contends that the provision does not violate FPM
chapter 335 because it merely requires that prior to a
reduction-in-force (RIF) management use vacancies when possible
to avoid separating employees. The Union also contends that the
provision is distinguishable from Corps of Engineers, Kansas City
District because it does not mandate noncompetitive repromotions
to employees who have been downgraded. Finally, it contends that
the provision is an appropriate arrangement.
B. Analysis and Conclusion
Provision 5 is within the duty to bargain. Although it
conflicts with management's right to make selections for
appointments under section 7106(a)(2)(C), it constitutes an
appropriate arrangement under section 7106(b)(3). Also, it is not
inconsistent with any Government-wide regulation under section
7117(a)(1).
The provision requires management to place employees, who
otherwise would be separated in a RIF, in existing vacancies "to
the maximum extent possible." While it does not expressly mandate
that management place employees in existing vacant positions,
requiring the Agency to do so "to the maximum extent possible"
limits the Agency's discretion to determine whether or not to
make such assignments. The provision, therefore, is like the
first and third sentences of Proposal 5 in National Treasury
Employees Union and Department of Health and Human Services,
Region X, 25 FLRA 1041, 1047 (1987). Those sentences
required the agency to make "diligent efforts" to make lateral
reassignments to vacant positions. We found that the sentences
limited the agency's discretion to determine whether or not to
make such reassignments, and, thereby, interfered with
management's right under section 7106(a)(2)(C) to make selections
for appointments. Id. at 1048-49. Based on the reasoning more
fully set forth and the cases cited in Department of Health and
Human Services, we find here that Provision 5 would require
management to select employees who otherwise would be separated
in a RIF and, therefore, interferes with management's right under
section 7106(a)(2)(C).
Because this provision conflicts with management's right to
select, it is outside the duty to bargain unless it constitutes
an appropriate arrangement under section 7106(b)(3). We find that
Provision 5 is an arrangement to mitigate the adverse
effects--demotion or release from employment--on employees
resulting from the exercise of a management right.
Balancing the respective interests of management and
employees and considering the relatively limited impact on
management's rights and the significant potential benefit to
employees, we conclude that the provision does not excessively
interfere with management's rights. We find here, similar to our
decision in Department of Health and Human Services, 25 FLRA at
1050, that the degree of interference with the Agency's right to
assign work is limited. It is clear from the record that the
provision is intended to preserve management's discretion
regarding whether to fill vacant positions and, if so, to fill
them with persons qualified to do the work of those positions.
Union Response at 26. The provision does not require the Agency
to fill all vacancies with affected employees. Rather, the
provision merely seeks to minimize the number of employees who
would be separated in a RIF. It preserves management's discretion
to determine whether a particular employee possesses
qualifications necessary to accomplish the work of a position. On
the other hand, the effect of separation in a RIF on affected
employees is severe. This provision could minimize the number of
employees who would be separated in a RIF and affected by the
related consequences of a RIF. Based on the foregoing
considerations, we find that the provision is an appropriate
arrangement within the meaning of section 7106(b)(3) and is
within the duty to bargain.
We turn now to the question of whether Provision 5 is
inconsistent with FPM chapter 335, subchapter 1-4,
requirement 4, as the Agency claims. Requirement 4, which
provides for an agency's right to fill positions from any
appropriate source, applies only to positions filled through
competitive procedures. Competitive procedures do not apply to
position changes permitted by RIF regulations. FPM chapter 335,
subchapter 1-5(b)(2). We find that requirement 4 is not
applicable to the filling of the vacant positions covered by the
provision since such position changes involve a RIF action and
would occur before the effective date of a RIF. See National
Treasury Employees Union and Department of Energy, 24 FLRA 479,
482 (1986).
VII. Provision 6
Article XXXL, Section 3102
It is agreed that every reasonable effort will be made to
provide limited duty work assignments for an employee who has
been returned to work by a Navy medical authority following an
illness or injury, in order to avoid placing such employees on
leave.
A. Positions of the Parties
The Agency contends that Provision 6 interferes with the
right to assign work. It argues that the provision is to the same
effect as Proposal 2 found nonnegotiable in National Federation
of Federal Employees, Local 943 and Department of the Air Force,
Headquarters Keesler Technical Training Center, Keesler Air Force
Base, Mississippi, 19 FLRA 949, 951 (1985). Also, itcontends
that the provision is not an appropriate arrangement. It argues
that "any adverse impact on employees arises not from the
exercise of management's right to assign work, but from a
physical disability due to an illness or injury." Agency
Supplemental Statement of Position at 17.
The Union contends that Provision 6 is an appropriate
arrangement for employees adversely affected by the Agency
exercising its "right to assign." It argues that the provision is
intended to diminish the adverse impact on employees of
assignments which "(aggravate) a health condition, or (expose) an
employee to unnecessary risk as a result of diminished capacity."
Union Response at 37. It further argues that the provision would
have a positive net result on effective and efficient government
operations. The impact on management of having to assign another
employee to do the work temporarily of the medically
restricted employee would be offset by: (1) retaining fully
experienced and trained employees; (2) avoiding protracted use of
sick leave; and (3) reducing the chance of on-the-job injury
resulting in employee absence or the expense of disability
retirement. Union Response at 38-39. Finally, the Union contends
that the provision is consistent with the intent of Executive
Order 12196 and 29 C.F.R. Part 1960 concerning on-the-job health
and safety protections for Federal employees.
B. Analysis and Conclusion
1. Background and Case Law
Provision 6 concerns limited duty assignments for employees
who have returned to work after having been injured or ill. The
provision concerns the relationship between employees' health and
safety and management's right to assign work, and provides us
with an opportunity to assess recent Authority precedent on this
issue.
Under section 7106(a)(2)(B), management has the right "in
accordance with applicable laws" to assign work. Management also
has the responsibility to provide a safe and healthful work
environment for its employees. Examples of applicable laws
include: section 1-201(a) of Executive Order No. 12196,
Occupational Safety and Health Programs for Federal Employees, 3
C.F.R. 145 (1980 Comp.), which states that "(t)he head of each
agency shall: (a) furnish to employees places and conditions of
employment that are free from recognized hazards that are causing
or are likely to cause death or serious physical harm." Section
19(a) of the Occupational Safety and Health Act of 1970, as
amended (29 U.S.C. 668) states that "(t)he head of each agency
shall (after consultation with representatives of the employees
thereof)--(l) provide safe and healthful places and conditions of
employment(.)" In addition, chapter 339, subchapter 1-3.b of the
Federal Personnel Manual (FPM) provides:
While health maintenance is primarily the responsibility of
the individual employee, the Federal employer has an obligation
to provide a safe work environment for his/her employees. He/she
also has a valid interest in preventing loss of work time and
work efficiency resulting from his/her employees/ ill health.
Employee health is, therefore, an integral part of progressive
personnel management. FPM chapter 250 identifies the
maintenance of an adequate employee occupational health program
as an action the manager, together with the guidance and
assistance of the personnel officer, should take in carrying out
his/her responsibilities for personnel utilization. Good
personnel utilization involves effectively using, conserving, and
developing human resources to accomplish agency missions with
minimum costs, and to meet national, social and economic
objectives.
Recent Authority decisions have addressed the relationship
between the right to assign work and the health and safety of
employees. For example, the Authority has addressed health and
safety concerns in the context of pregnant employees, National
Federation of Federal Employees and Department of the Interior,
Bureau of Land Management, 29 FLRA 1491, 1511 (1987) (Provision
13), and "imminent danger" situations, American Federation of
Government Employees and Army and Air Force Exchange Service, 30
FLRA No. 102 (1988) (Provision 1). In addition, we have ruled on
the negotiability of proposals requiring that particular duties
be assigned--or not assigned--to employees in certain
circumstances. Before turning to resolution of the provision
before us, we will review those decisions.
One case involved the employee's individual right to
determine whether particular work would affect his/her health. In
American Federation of Government Employees, Local 2094, AFL -
CIO and Veterans Administration medical Center, New York, New
York, 22 FLRA 710 (1986), affirmed on other matters sub nom.
American Federation of Government Employees, AFL - CIO, Local
2094 v. FLRA, 833 F.2d 1037 (D.C. Cir. 1987), Proposal 4
provided that "(n)o employee will be forced to work overtime if
he/she feels it will affect his efficiency, health or emotional
safety." The Authority rejected the union's assertion that the
proposal constituted a procedure to govern the assignment of work
and found that the proposal was nonnegotiable because it violated
the right to assign work.
Another case focused on the opinions of competent medical
authority regarding the type of work an employee could perform.
American Federation of Government Employees, AFL - CIO, Local
1409 and Department of the Army, U.S. Army Adjutant General
Publications Center, Baltimore, Maryland, 28 FLRA 109 (1987)
concerned medical restrictions on assigned duties.
Provision 2 stated: "supervisors will not assign employees to
duties which conflict with any medical restrictions or
limitations placed on the employees by competent medical
authority." As in Veterans Administration Medical Center, New
York, the Authority found that the provision violated the
agency's right to assign work. Further, the Authority analyzed
the provision under the "excessive interference" test set forth
in National Association of Government Employees, Local R14-87 and
Kansas Army National Guard, 21 FLRA 24 (1986), and determined
that the provision was not negotiable as an appropriate
arrangement under section 7106(b) (3) of the Statute:
While the provision is intended to protect employees against
possible injury from work assignments, in our view the standard
contained in the provision for restricting management's right to
assign work--whether the duties conflict with any medical
restrictions placed on the employee by competent medical
authority--is too broad. That is, the prohibition contained in
the provision would apply to any duty assignments which employees
may claim will conflict for any reason and to any extent with the
limitations imposed by competent medical authority.
28 FLRA at 113 (emphasis added).
Three cases involved the opinion of employer's physician. In
American Federation of Government Employees, AFL - CIO, Local
1770 and Department of the Army, Fort Bragg Dependent Schools,
Fort Bragg, North Carolina, 28 FLRA 493 (1987), petition for
review filed sub nom. Department of the Army, Fort Bragg
Dependent Schools v. FLRA, No. 87-2661 (4th Cir. Sept. 22,
1987), section 4 of Provision 3 provided: "In case of a
job-related injury or sickness, an employee shall not be required
to perform work until an employer medical officer or doctor
determines that the employee is physically fit for duty."
Consistent with the decision in U.S. Army Adjutant General
Publications Center, the Authority found that the Provision
excessively interfered with the exercise of the right to assign
work. The Authority noted that the provision contained "no limit
on the extent of injury or illness requiring medical
certification" before an employee's continuation of work and that
the provision would "restrict management's ability to accomplish
work in circumstances where medical certification would not be
necessary for employee protection." Id. at 509.
Accordingly, the provision was found to be nonnegotiable.
Provision 1 in National Federation of Federal Employees,
Local 284 and Department of the navy, Naval Air Technical
Training Center, Lakehurst, New Jersey, 29 FLRA 958 (1987), was
found to be negotiable. The provision stated: "When an employee
becomes capable of performing light duty work, after an
on-the-job injury, the employing department will make every
reasonable effort to assign light duty work consistent with the
restrictions specified by the Branch Clinic." We concluded that
although the provision violated the right to assign work, it was
intended as an appropriate arrangement within the meaning of
section 7106(b)(3). We concluded that since "the branch clinic is
the arm of the agency which initially determines that employees
should be in a 'light duty' status," requiring the agency to make
reasonable efforts to assign work consistent with recommendations
of the branch clinic does not excessively interfere with the
right to assign work. Id. at 960. On balance, therefore, we found
that the "protection afforded employees against further
job-related injuries outweighs the detrimental impact on
management's ability to accomplish its work load." Id.
Accordingly, we found that the provision was a negotiable
appropriate arrangement.
In the third case, American Federation of Government
Employees, Local 2024 and Department of the Navy, Portsmouth
Naval Shipyard, Portsmouth, New Hampshire, 30 FLRA 16 (1987),
Proposal 2 provided:
When an employee has been returned to work by the Employer's
medical authority for a temporary, brief period of light duty,
the Employer agrees to assign the type of work to the employee
that will not aggravate his illness or injury when such work is
available which he is qualified to perform. If the Employer is
unable to provide such light duty, the Employer will approve a
period of absence due to illness as recommended by its medical
authority.
We determined that although the proposal directly interfered
with the agency's right to assign work, it was negotiable as an
appropriate arrangement under section 7106(b)(3). We found that
the proposal did not excessively interfere with the exercise of
the right to assign work for the following reasons:
The proposal simply requires that, in accordance with the
Agency's medical authority, the Agency assign to the employee
"light duty" work when such work is available and which the
employee is qualified to perform. Once the determination is made
by the Agency's medical authority that an employee should be
placed in a "light duty" status, to require the Agency to make
such . . . assignments, when they are available and the employee
is qualified to perform them, does not excessively interfere with
management's right to assign work. The limitations established by
the provision are those recommended by the Agency's own
officials. Moreover, management is not absolutely bound by those
limitations, but is obligated only to make such assignments when
the work is available and the employee is qualified to perform
such work.
Id. at 18.
Finally, another case involved union attempts to require the
employee to comply with applicable rules and regulations as well
as medical recommendations. Provision 6, which concerned the
assignment of duties to ill, injured, and handicapped employees,
was found to be negotiable in American Federation of Government
Employees, AFL - CIO, Local 1458 and U.S. Department of Justice,
Office of the U.S. Attorney, Southern District of Florida, 29
FLRA 3 (1987). That provision stated: "The Employer shall, to
the extent possible, and in accordance with applicable rules and
regulations and medical recommendations, make every reasonable
effort to grant such temporary assignments." We found that the
provision did not "absolutely prohibit" the assignment of certain
duties, and further, that the agency was obligated to make a
reasonable effort to grant requests for temporary assignments
"only in accordance with 'applicable rules and regulations.'" Id.
at 13. We found that the provision was a negotiable procedure
under section 7106(b)(2) of the Statute.
2. The Relationship Between The Right To Assign Work And
Employees' Health and Safety
Examination of the cases discussed above in connection with
Provision 6 in this case provides us with an opportunity to
clarify our views concerning the relationship between
the right to assign work under the statute and employees' health
and safety.
We believe that under section 7106(b)(2) of the Statute, the
procedures by which an agency exercises its right to assign work
may include restrictions on particular assignments or duties
imposed by the agency's own medical authorities. When an agency's
medical authorities exercise their responsibilities by
restricting the assignment of duties to employees for medical
reasons, we find that the agency may be contractually bound to
observe those restrictions. That is, we believe that the right to
assign work is a right exercised by the agency as a whole. The
right to assign work does not entitle a portion of an agency to
assign duties which are inconsistent with those which are found
by another portion of the agency to constitute a risk to an
employee's health and safety.
Accordingly, in this and future cases, we will examine
proposals requiring the agency to assign--or not to
assign--particular duties for health and safety reasons to
determine whether they (1) require the agency to observe
restrictions which have been imposed by the agency's "own"
medical authorities, or (2) impose restrictions independent of
and/or inconsistent with those of the medical authorities. An
agency's medical authorities may include an employee of the
agency, or a medical authority designated by the agency, or one
with which the agency has contracted. Proposals which require the
agency to assign work consistent with restrictions of its own
authorities will be found to be procedural under section
7106(b)(2). Proposals which impose restrictions which are
independent of and/or inconsistent with those of the agency's
medical authorities will be found to violate the agency's right
to assign work.
3. Provision 6 Violates The Agency's Right To Assign Work
Based on its wording and the Union's explanation of its
intent, Provision 6 would require management to provide limited
duty work assignments for employees who had been returned to work
by the Agency's medical authority after being ill or injured.
Provision 6 is distinguishable from proposals relied on by the
Union which do not preclude the assignment of work but merely
require management to consider health and safety factors in
assigning work. See National Federation of Federal Employees,
Local 1622 and Department of the Army Headquarters, Vint Hill
Farms Station, Warrenton, Virginia, 16 FLRA 578, 581
(1984); American Federation of Government Employees, AFL - CIO,
local 3511 and Veterans Administration Hospital, San Antonio,
Texas, 12 FLRA 76, 91 (1983). Rather than requiring the Agency
to consider various factors in assigning work, Provision 6
requires the Agency to make particular work assignments.
Further, Provision 6 would require the Agency to make
limited duty work assignments whether or not those assignments
were recommended by the Agency's medical authorities. The
provision would require management to provide limited duty work
assignments even where in the judgment of the Agency's medical
authorities the employee could perform his or her regular work
assignments. Because the provision restricts the duties which may
be assigned by the Agency without regard to the views of the
medical authorities, we find that the provision directly
interferes with the exercise of the Agency's right to assign
work. It is not, therefore, a negotiable procedure under section
7106 (b)(2).
4. Provision 6 Is Not An Arrangement Within The Meaning Of
Section 7106(b)(3)
The threshold question in determining whether a provision
constitutes an "appropriate arrangement" for employees adversely
affected by the exercise of a management right is whether the
provision is an "arrangement" for adversely affected employees.
National Association of Government Employees, Local R14-87 and
Kansas Army National Guard, 21 FLRA 24 (1986). The Union intends
Provision 6 to protect employees from management exercising its
right to make work assignments which would aggravate their
"medical/physical conditions and/or limitations." Union response
at 35-36.
In our view, this provision does not address an adverse
effect which results from the exercise of management's right to
assign work. Rather, the proposal precludes the assignment of
certain duties on the assumption that if they were assigned,
there would be an adverse effect. That is, the proposal
eliminates the possibility of an adverse effect by precluding the
Agency from exercising its right to assign work.
We find that the potential adverse effect is not sufficient
to establish that Provision 6 is an "arrangement" for "employees
adversely affected" by the exercise of the right to
assign work. Accordingly, it is not a negotiable appropriate
arrangement under section 7106(b)(3).
VIII. Provision 7
Article XXXVII Section 3702
Prior to termination, probationary employees must have been
previously notified in writing of the shortcomings in his/her
performance, received specific counseling on those shortcomings
and advised specifically and in detail as to what he/she must do
to bring his/her performance to a fully acceptable level and
given reasonable time to do so.
A. Positions of the Parties
The Agency contends that the provision is inconsistent with
law (5 U.S.C. 3321) and regulation (5 C.F.R. (3)15.801, subpart
H) concerning the termination of probationary employees. It
argues that the provision would subject termination of
probationary employees to arbitral review and would add
procedural protections for probationary employees to those
provided by the Office of Personnel Management, citing Department
of Health and Human Services, Social Security Administration and
American Federation of Government Employees, Local 1923, AFL -
CIO, 15 FLRA 714 (1984).
The Union contends that the provision establishes an
appropriate arrangement for probationary employees to ensure that
such employees are informed of their performance.
B. Analysis and Conclusion
Relying on the court's decision in Department of Justice,
Immigration and Naturalization Service v. FLRA, 709 F.2d 724
(D.C. Cir. 1983), the Authority has stated that "OPM (Office of
Personnel Management) is 'to provide whatever procedural
protections are necessary for probationary employees.'"
Department of Health and Human Services, 15 FLRA at 715. In that
decision the Authority also stated that "in enacting the Statute,
Congress did not intend that procedural protections for
probationary employees be established through collective
bargaining under the Statute." Id. (emphasis added).
During the probationary period, a supervisor should observe
the probationer's conduct, general character traits, and
performance closely. The supervisor should try to understand the
employee's problems and give proper guidance. If the probationer
is unfit for satisfactory service the supervisor must initiate
action to separate the probationer. Federal Personnel Manual
(FPM) chapter 315, subchapter 8-3.a.(1)-(4).
When an agency terminates a probationary employee based on
deficiencies in performance or conduct after entrance on duty,
OPM regulations require only that the agency notify the employee,
in writing, of the reasons for the termination and the effective
date of the action. Although the notice must include the agency's
conclusions on the inadequacies of the employee's performance or
conduct, the notice need not contain complete and specific
reasons. FPM chapter 315, subchapter 8-4a.(3). Although it is not
required, it is good personnel practice to furnish the
probationer with enough factual information to make the agency's
basis for action clear. FPM chapter 315, subchapter 8-4a.(4).
The provision would require that prior to termination the
Agency provide the probationary employee with: (1)a written
statement of the shortcomings in his/her performance; (2)
specific counseling on those shortcomings; (3) specific and
detailed advice as to how to bring his or her performance to a
fully acceptable level; and (4) a reasonable time in which to do
so. The provision establishes these four steps as prerequisites
to termination. By doing so, it establishes procedural
protections beyond those provided in the FPM. For example,
although the FPM states that an agency should provide guidance to
employees during their probationary period, it does not require
such as a condition to terminating a probationer. Nor does the
FPM require that, prior to termination, an agency must afford a
probationer with a "reasonable time" in which to improve
unsatisfactory performance.
We find that Provision 7 is inconsistent with law and
regulation because it would create, through collective
bargaining, procedural protections for probationary employees. It
is therefore not within the duty to bargain. In view of this
conclusion, it is unnecessary to reach the Union's argument
concerning section 7106(b)(3).
IX. Order
The Agency must rescind its disapproval of Provisions 4 and
5. 2 The petition for review as to Provisions 1, 2, 3, 6, and 7
is dismissed.
Issued, Washington, D.C., January 29, 1988.
Jerry L. Calhoun, Chairman
Jean McKee, Member
FEDERAL LABOR RELATIONS AUTHORITY
FOOTNOTES
Footnote 1 We will not consider in this decision 10
additional provisions contained in the petition for review. The
Union withdrew its appeal of nine provisions: Sections 403, 707,
803, 804, 809, 907, 100(7), 1302, and 3605. The Agency withdrew
its allegation of nonnegotiability on Section 1802. Pursuant to
section 2424.8 of our Rules and Regulations, we granted the
Agency's request to supplement its statement of position to
address Union arguments, raised for the first time in the Union's
Response, that certain of the provisions in dispute are
negotiable as appropriate arrangements under section 7106(b)(3).
We granted permission to the Union to respond to the Agency's
supplemental submission. The union did not file a response.
Footnote 2 In finding these provisions to be within the duty
to bargain, we make no judgment as to their merits.